Seereeram Bros Ltd v The Central Tenders Board
| Jurisdiction | Trinidad & Tobago |
| Judge | Jones, J. |
| Judgment Date | 15 July 1994 |
| Neutral Citation | TT 1994 HC 89 |
| Docket Number | HCA No. 3123 of 1991 |
| Court | High Court (Trinidad and Tobago) |
| Date | 15 July 1994 |
High Court
Jones, J.
HCA No. 3123 of 1991
Mr. R. Martineau, S.C. & Mr. G. Smith for applicant.
Mr. T. Thorne for respondent Central Tenders Board.
Mr. R. Armour for Interested Party/Intervener.
Judicial review - Applicant seeking an order of certiorari quashing the decision of the Central Tenders Board which had awarded a road construction contact to another company — Applicant company had lowest tender and claimed that the Tenders Board had been actuated by irrelevant considerations — Board is mandated to award to the lowest tendered with one qualification which is that the reason for not accepting the lowest tender must be a good reason — S. 24 of the Central Tender Board Ordinance leaves it to the discretion of the Board — Discretion not absolute one and Board is required to act fairly — Brind v. Secretary of State for Home Dept. [1991] 1 All E.R. 720 considered — Stipulation that tender must be valid for 120 days but Board awarded contract to company which had a sixty day notice — Board thus acted unfairly — Chief Constable of North Wales Police v. Evans [1982] 3 All E.R. 141 applied — No circumstances made order of certiorari inapplicable — Order of Certiorari granted to quash decision of Board.
By Notice of the 11th of April, 1991, published in the two daily newspapers circulating in Trinidad and Tobago and in the Trinidad and Tobago Gazette of the 21st of April, 1991, the Central Tenders Board (The Board) the agency of Government responsible for the award of contracts for the Government and other Statutory Bodies, invited tenders for the construction of the Belmont Road — Mason Hall to Hope, Tobago. The client Ministry/Department as the body for which the works are commissioned is called was the Tobago House of Assembly. Since the contents of the tender notice attracted much argument, the Notice is set out in full –
Invitation to tender for the construction of Belmont Road — Mason Hall to Hope, Tobago for the Tobago House of Assembly:
Tenders are invited for the construction of Belmont Road (Mason Hall to Hope, Tobago) for the Tobago House of Assembly.
2. Contract documents for the project may be perused at the Office of the Technical Officer, Works Division, Carrington Street, Scarborough, Tobago during normal working hours. Documents may be taken away only on production of a receipt showing that a bender deposit of five hundred dollars ($500.00) has been paid to the Cashier, Treasury, Port of Spain or any District Revenue Office. The original tender deposit receipt must accompany the tender and will be refunded under the conditions set out in the Central Tenders Board Ordinance No. 22 of 1961.
3. Prospective tenderers must furnish as part of their tender a bid bond in the amount of 1% of the Tender sum failing which, tenders will be rejected.
4. Tenderers are advised to visit the site at their own convenience and acquaint themselves with site conditions which may influence their tender. Any further technical information may be obtained from Mr. I Beache, Chief Planning Engineer, Works Division, Carrington Street, Scarborough, Tobago. Telephone Number 639–2693.
5. Tenderers registered for the purpose of Value Added Tax must:–
(i) Provide the Value Added Tax Registration Number.
(ii) Show the Tax separately below the tender price.
6. Tenders must be accompanied by a valid Income Tax Certificate issued by the Board of Inland Revenue and dated not more than six (6) months prior to the closing date of tender.
7. Tenders must remain valid for a period of one hundred and twenty (120) days.
8. Prospective tenderers must quote a firm lump sum price for all works with breakdown of the price as specified in the brief.
9. The successful tenderer will be required to enter into a form–1 Agreement with the Clerk, Tobago House of Assembly and provide a Performance Bond in an amount of ten percent (10%) of the contract sum for the proper performance of the contract.
Tenders must be enclosed in a sealed envelope marked on the outside: “Tender Construction of Belmont Road — Mason Hall to Hope, Tobago for the Tobago House of Assembly.”
10. Tenders will be opened publicly on the same day at 1.30 p.m. at the Office of the Central Tenders Board. The tenderer or his duly authorised representative may be present at the opening.
11. The Board reserves the right to reject tenders received not signed or without Income Tax Certificate or in unsealed envelopes or with alterations or erasures not initialled by the tenderer.
12. The Board does not bind itself to accept the lowest or any other tender.
13. Late tenders will not be considered in any circumstances.
H. MARCANO
for DIRECTOR OF CONTRACTS
CTB:17/5/1
April 11, 1991”
In response to the Tender Notice tenders were received from four firms. They are listed herein –
(i) Seereeram Bros. Ltd.
(ii) Trinidad Contractors Ltd.
(iii) P.R. Contracting Ltd.
(iv) Western Hemisphere Construction Co. Ltd.
At a meeting of the 20th August, 1991, the Board considered the tenders of all the above mentioned firms and awarded the contract to Trinidad Contractors Ltd. (The Interested Party) informing the firm of its decision by letter of the 26th August, 1991. Seereeram Bros. Ltd. whose tender sum was $14,860,572 was the lowest tenderer as against $14,982,227 by Trinidad Contractors Ltd.
On the 5th September, 1991 the applicant company receive a letter from the Board dated the 4th of September, 1991 informing it that its tender was not successful. On the 9th September, 1991, the applicant company's Managing Director wrote to the Board, the Honourable Prime Minister and other Government officials in an attempt to ascertain the reason for it not being awarded the contract. No response was received until after these proceedings were instituted and even then the Board felt content merely to say that it did not bind itself to accept the lowest tender, and that all its deliberation were confidential
Seereeram Bros. Ltd. (The applicant company) aggrieved by the decision of the Board filed these proceedings claiming the following reliefs –
“A. An order of certiorari quashing the decision of the Central Tenders Board which decided that the contract in respect of the construction of Belmont Road, Mason Hall, to Hope, Tobago, was to be awarded to Trinidad Contractors Limited and not the applicant even though the applicant tendered the lowest bid.
B. Further, or in the alternative, a declaration that the said decision is null and void and of no effect.
C. An order of mandamus directing the Central Tenders Board to reconsider its decision and to award the said contract to the applicant.
D. An order to prohibition preventing the Central Tenders Board from considering itself bound by its decision to award the said contract to Trinidad Contractors Limited.
E. Further, or in the alternative, an injunction to prevent an award of the said contract to Trinidad Contractors Limited
F. Further, or in the alternative, an order that the Central Tenders Board be directed to stay all proceedings taken or to be taken as a tribunal in furtherance of their decision to recommend that Messrs Trinidad Contracting Limited be awarded the said contract until the hearing of this application or until further order.
G. Damages.
H. Costs.
I. Further or other relief as may be just.”
The grounds upon which the reliefs were sought are –
“1. The respondent Board in purporting to determine the results of its invitation to tender was activated by or purported to be activated by extraneous and/or irrelevant considerations especially in light of the facts that (a) the Representative of the Tobago House of Assembly, who was consulted to evaluate the tenders for the project recommended the applicant over the other tenderers for the award of the contract (b) the applicant is fully mobilised and possesses all the necessary road construction material, plant and equipment in Tobago whereas Messrs. Trinidad Contractors Limited are not so mobilised or in possession of road construction material, plant and equipment in Tobago and (c) the applicant was the lowest tenderer in relation to this project.
2. No full and sufficient inquiry was made by the respondent before arriving at its decision.
3. The said decision was contrary to the principles of natural Justice in that the respondent Board:–
(i) Failed to disclose the criteria for selection.
(ii) Treated the applicant unfairly.
(iii) Acted in breach of the principles of fair procedure.
(iv) Impinged upon the enshrined right under the Constitution of the Republic of Trinidad and Tobago of the individual to equality of treatment from a public authority.
4. In making its decision, the respondent Board exceeded its jurisdiction in that the decision is such that a reasonable authority properly directing itself and acting reasonably could have reached.
5. In making its decision the respondent Board acted in bad faith in that:
(i) it rejected the bid of the applicant even though the said bid was the lowest tendered;
(ii) it rejected the bid of the applicant even though the technical officer of the Tobago House of Assembly, who was consulted to evaluate the tenders, recommended the applicant over the other tenderers;
(iii) it rejected the bid of the applicant even though the applicant was fully mobilised in Tobago and had an asphalt plant, concrete plant, quarry and building infrastructure in Tobago whereas Messrs. Trinidad Contractors Limited were not so mobilised or possessed of plant equipment, material and infrastructure in Tobago.
6. The decision of the respondent Board is manifestly unreasonable in that:–
(i) The applicant is one of the largest general contractors in Trinidad with vast experience in the field of road construction and possesses the financial and...
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